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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
the factual allegations set forth below, Defendant Izolation has engaged in a
deliberate, willful and intentional course of conduct intended (i) to infringe Plaintiff
Isolite Systems patents, (ii) to trade on Plaintiff Isolite Systems reputation and
goodwill by misleading and confusing consumers through the use of confusingly
similar trademarks and trade dress, (iii) to engage in false advertising and product
disparagement, and (iii) to cause severe, permanent, irreparable harm to Plaintiff
Isolite Systems in the form of lost customers, lost market share and diminution in
its market value reaching into the millions of dollars as more fully described below.
PARTIES, JURISDICTION AND VENUE
2. Plaintiff Isolite Systems is a corporation duly organized and existing
under the laws of the State of California, with its principal place of business located
at 111 Castilian Drive, Santa Barbara, California.
3. On information and belief, Defendant Izolation is a corporation duly
organized and existing under the laws of the State of California, with its principal
place of business located at 17151 Newhope Street, Suite 203, Fountain Valley,
California.
4. This Court has subject matter jurisdiction over this action (a) pursuant
to 28 U.S.C. 1331 in that it concerns federal questions, (b) pursuant to 28 U.S.C.
1338 in that it concerns violations of the Patent Act (35 U.S.C. 1 et seq.), (c)
pursuant to 28 U.S.C. 1338 and 15 U.S.C. 1121 in that it concerns violations of
the Federal Lanham Act (15 U.S.C. 1114 and 1125(a)), and (d) state law claims
pursuant to 28 U.S.C. 1338(b) and 28 U.S.C. 1367(a) under the doctrine of
supplemental jurisdiction.
5. This Court has personal jurisdiction over Defendant Izolation in this
action in that it resides within the boundaries of this judicial district and acts
complained of in this action took place in this judicial district.
6. Venue is proper in this judicial district pursuant to 28 U.S.C.
1391(b) and (c) and 1400(b) because, among other reasons, Defendant Izolation (i)
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resides within the boundaries of this judicial district, (ii) has committed acts of
infringement and other acts complained of in this action in this judicial district, and
(iii) has a regular and established place of business in this judicial district.
FACTUAL ALLEGATIONS
7. Plaintiff Isolite Systems is a family-owned company founded in or
around 2001 by brothers J ames A. Hirsch and Dr. Thomas R. Hirsch (collectively
sometimes referred to herein as the Hirsch Brothers) in Santa Barbara, California.
8. In or around 1998, The Hirsch Brothers invented a revolutionary new
dental device intended for use by dental professionals (i) to isolate the work area in
a patients mouth, (ii) to retract the tongue and cheek, (iii) to evacuate fluids and
oral debris, and (iv) to prevent inadvertent aspiration of material. This device is
hereinafter sometimes referred to as the Isolite Product.
9. On November 17, 1998, the Hirsch Brothers filed a patent application
covering their invention that issued on February 8, 2000 as U.S. Patent No.
6,022,214 (hereinafter referred to as the 214 patent). The Hirsch Brothers
assigned the 214 patent to Plaintiff Isolite Systems.
10. On February 27, 2003, the Hirsch Brothers filed the application for
U.S. Patent No. 6,974,321 (hereinafter referred to as the 321 patent), which
issued on December 13, 2005, covering a modification in the design of the Isolite
Product. The Hirsch Brothers assigned the 321 patent to Plaintiff Isolite Systems.
11. For approximately ten years, Plaintiff Isolite Systems has
manufactured, distributed and sold a model of the Isolite Product currently known
as the Isolite Dryfield illuminator system, that includes an internal LED light
source that provides illumination throughout the oral cavity and is sold under the
federally registered trademark ISOLITE.
12. Since 2010, Plaintiff Isolite Systems has manufactured, distributed and
sold a model of the Isolite Product without the LED light source that is sold under
the federally registered trademark ISODRY, and is intended for use by dental
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professionals who prefer to work with external lighting.
13. For the past decade, Plaintiff Isolite Systems has invested large sums
of money and countless hours of human resources to build the strong reputation and
valuable goodwill that it presently enjoys in its market niche, i.e. dental
professionals such as dentists, dental hygienists and dental assistants, as well as
oral surgeons.
14. Plaintiff Isolite Systems is the owner by assignment of all right, title,
and interest in and to United States Patent No. 8,297,973 entitled Intraoral
Device (hereinafter referred to as the 973 patent), which was duly and legally
issued by the United States Patent and Trademark Office (USPTO) on October
30, 2012 naming J ames A. Hirsch and Thomas R. Hirsch as inventors. On
February 5, 2013, the USPTO issued a Certificate of Correction for the 973 patent.
The 973 patent is valid, enforceable, and currently in full force and effect. A true
and accurate copy of the 973 patent with the Certificate of Correction is attached
hereto as Exhibit A and incorporated herein by reference.
15. Plaintiff Isolite Systems is the owner by assignment of all right, title,
and interest in and to United States Patent No. 6,908,308 (the 308 patent)
entitled Intraoral Device and Method of Using the Same (hereinafter referred to
as the 308 patent), which was duly and legally issued by the USPTO on J une 21,
2005, naming J ames A. Hirsch and Thomas R. Hirsch as inventors. The 308
patent is valid, enforceable, and currently in full force and effect. A true and
accurate copy of the 308 patent is attached hereto as Exhibit B and incorporated
herein by reference.
16. Plaintiff Isolite Systems is the owner by assignment of all right, title,
and interest in and to United States Patent No. D615,203 (the D203 patent),
which was duly and legally issued by the USPTO on May 4, 2010, for the
ornamental design of an intraoral device shown therein and naming J ames A.
Hirsch and Thomas R. Hirsch as inventors. The D203 patent is valid, enforceable
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and currently in full force and effect. A true and accurate copy of the D203 patent
is attached hereto as Exhibit C and incorporated herein by reference.
17. Plaintiff Isolite Systems adopted the mark ISOLITE and used it in
interstate commerce for the Isolite Product for over ten years.
18. On April 16, 2012, Plaintiff Isolite Systems filed an application for a
federal trademark registration in the USPTO for the mark ISOLITE, which was
registered on the Principal Register on May 7, 2013 covering the use of said mark
on the following goods:
Dental apparatus, namely, intra-oral light systems; Dental device
that expands the mouth to improve the field of view inside the
mouth, and extracts saliva from the work area inside the mouth;
Dental instruments for use in teeth cleanings, dental prophylaxis
and dental surgery; Dental instruments, namely, Dental light
systems, dental aspirators, bite blocks, saliva ejectors, saliva
suction devices, tissue retractors, gingival retractors, tongue
guards, and dental tongue and cheek retractors; Dental operating
lamps; Intra-oral dental light system; Medical instruments for use
in teeth cleaning and dental prophylaxis by dentists and dental
hygienists in the nature of dental aspirators, bite blocks, saliva
ejectors, saliva suction devices, tissue retractors, gingival
retractors, tongue guards, and dental tongue and cheek retractors.
The application noted that the mark ISOLITE had been used in commerce by
Plaintiff Isolite Systems since at least on or about May 1, 2003. This federal
trademark registration is presently valid. A copy of the USPTOs web page
depicting this federal trademark registration for ISOLITE is attached hereto as
Exhibit D and incorporated herein by reference.
19. Plaintiff Isolite Systems adopted the mark ISODRY and used it in
interstate commerce for the model of the Isolite Product that does not have the LED
light source since at least on or about March 1, 2010.
20. On August 17, 2009, Plaintiff Isolite Systems filed its application for a
federal trademark registration in the USPTO for the mark ISODRY, which was
registered on the Principal Register on April 12, 2011 covering the use of said mark
on the following goods:
Medical and dental apparatus, namely, suction devices for dental
use, dental aspirators, dental bite blocks, saliva ejectors, saliva
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suction devices, tissue retractors, gingival retractors, tongue
guards, dental dams, and dental tongue and cheek retractors;
Dental device that expands the mouth to improve the field of view
inside the mouth, and extracts saliva from the work area inside the
mouth; Dental instruments for use in surgery and dental
procedures; Surgical apparatus and instruments for dental use.
This federal trademark registration is presently valid. A copy of the USPTOs web
page depicting this federal trademark registration is attached hereto as Exhibit E
and incorporated herein by reference.
21. Over the years, Plaintiff Isolite Systems has spent hundreds of
thousands of dollars promoting and advertising the federally registered marks
ISOLITE and ISODRY (the Isolite Marks) and, as a result, Plaintiff Isolite
Systems has successfully built a very recognizable brand in its market of dental
professionals that has generated valuable goodwill.
22. Defendant Izolation promotes, advertises, distributes and sells in the
United States a dental device referred to on its website at www.izolation.com (the
Izolation website) as a Dryfield Isolation System.
23. Defendant Izolations Dryfield Isolation System (the Izolation
Dryfield Isolation System) appears to be used for the identical purpose as Plaintiff
Isolite Systems Isolite Product: (i) to isolate the work area inside a persons
mouth, (ii) to retract the tongue and cheek, (iii) to evacuate fluids and oral debris,
and (iv) to prevent inadvertent aspiration of material.
24. In connection with the sale of the Izolation Dryfield Isolation System,
Defendant Izolation uses the marks (a) IZOLATION for the Izolation Dryfield
Isolation System; (b) IZO-SOFT, IZO-SOFT SMALL, and IZO-RETRACT
for three separate mouthpieces components, (c) IZO-BITE for what Defendant
Izolation calls on the Izolation website a bite block component, and (d) IZO-
CORE for a connector component that connects one of the three selected
mouthpieces to a vacuum source. In addition, on or about J uly 15, 2011, Defendant
Izolation filed an application for a federal trademark registration for the mark
IZOFLEX for Dental device that expands the mouth to improve the field of
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view inside the mouth, and extracts saliva from the work area inside the mouth.
The marks used by Defendant Izolation as described herein are hereinafter referred
to as the Izolation Infringing Marks.
25. The Izolation mouthpieces all appear to have a fish-tail shape and
translucent color that is substantially and confusingly similar to the distinctive fish-
tail shape of the Isolite Products mouthpiece.
26. On information and belief, Defendant Izolation, through its President
Ronald Nguyen and perhaps others, had knowledge of Plaintiff Isolite Systems, the
Isolite Marks, and/or the design of one or both of the models of the Isolite Product
including the distinctive fish-tail shape and translucent color, prior to Defendant
Izolations (a) adaptation and use of the trade name IZOLATION INC., (b)
adaptation and use of one or more of the Izolation Infringing Marks, and (c)
implementation of the design of the Izolation Dryfield Isolation System.
27. On information and belief, Defendant Izolation knowingly,
intentionally, willfully and deliberately engaged in a scheme to copy the Isolite
Product, and to misappropriate and benefit from Plaintiff Isolite Systems goodwill
and reputation by (a) adopting the trade name IZOLATION INC. at the time it
was incorporated, which trade name is confusingly similar to Plaintiff Isolite
Systems trade names ISOLITE and ISOLITE SYSTEMS, (b) using the
Izolation Infringing Trademarks, which are confusingly similar to one or more of
the Isolite Marks, and (c) designing and selling the Izolation Dryfield Isolation
System without regard to whether it (i) infringes Plaintiff Isolite Systems patents,
and (ii) has a shape and color substantially and confusingly similar to the
distinctive fish-tail shape and translucent color of the Isolite Products mouthpiece
component.
28. On information and belief, Defendant Izolation has sold and offered
for sale, and continues to sell and offer for sale the Izolation Dryfield Isolation
System with the words patent pending marked upon and/or affixed thereto and/or
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uses such words in advertising when in fact, no application for patent has been
made, or if made, is not pending, for the purpose of deceiving the public, and
Plaintiff Isolite Systems has suffered a competitive injury as a result thereof.
29. On or about March 28, 2012, prior to the issuance of the 973 patent,
Plaintiff Isolite Systems counsel sent a letter to Defendant Izolation notifying
Izolation that the Izolation Dryfield Isolation System likely infringes the 308
patent and the D203 patent and demanding that Izolation cease and desist. A copy
of the March 28, 2012 letter is attached hereto as Exhibit F and incorporated
herein by reference.
30. Defendant Izolation failed to comply with, or even respond to, the
March 28, 2012 cease and desist letter.
31. The California Dental Association holds CDA Presents conventions
which its website at http://www.cdapresents.com/Exhibitors.aspx describes as
being among the largest dental tradeshows in the United States. The CDA
Presents convention in Anaheim took place from April 11-13, 2013 (the 2013
CDA Anaheim Trade Show). The CDA Presents convention in San Francisco
took place from August 15-17, 2013 (the 2013 CDA San Francisco Trade Show).
The California Dental Associations website states, These premier dental meetings
attract thousands of dental professionals from throughout California and the nation
every one looking for the latest products and services to complement their
practices, as well as our wide variety of continuing education opportunities
presented by leading clinicians.
32. Defendant Izolation attended the 2013 CDA Anaheim Trade Show and
the 2013 CDA San Francisco Trade Show as an exhibitor with trade show booths.
33. On information and belief, a primary and/or important means of
Defendant Izolations advertising and promotion of the Izolation Dryfield Isolation
System is through its President and CEO, Dr. Ron Nguyen and other Izolation sales
representatives at trade shows attended by dental professionals such as the 2013
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CDA Anaheim Trade Show and the 2013 CDA San Francisco Trade Show.
34. Dental professionals attending trade shows such as the 2013 CDA
Anaheim Trade Show and the 2013 CDA San Francisco Trade Show comprise a
primary and/or important market for the advertising, promotion and sale of the
Izolation Dryfield Isolation System.
35. A major means of communication between Defendant Izolation and its
target market of dental professionals is oral communication conducted by its
President and CEO, Dr. Ron Nguyen, and other Izolation sales representatives at
Isolations trade show booths exhibited at dental trade shows, including the 2013
CDA Anaheim Trade Show and the 2013 CDA San Francisco Trade Show.
36. At both the 2013 CDA Anaheim Trade Show and the 2013 CDA San
Francisco Trade Show, Defendant Izolation exhibited the Izolation Dryfield
Isolation System at two or more trade show booths run by its President and CEO
Dr. Ron Nguyen and other sales representatives.
37. At Defendant Izolations trade show booths at both the 2013 CDA
Anaheim Trade Show and the 2013 CDA San Francisco Trade Show, Defendant
Izolation displayed the mouthpiece component of the Isolite Product side-by-side
with the mouthpiece and other components comprising the Izolation Dryfield
Isolation System.
38. On information and belief, Defendant Izolation has regularly displayed
the mouthpiece component of the Isolite Product side-by-side with the mouthpiece
and other components comprising the Izolation Dryfield Isolation System at its
trade show booths at other conventions and trade shows attended by dental
professionals throughout the United States.
39. In displaying the mouthpiece component of the Isolite Product side-
by-side with the mouthpiece and other components comprising the Izolation
Dryfield Isolation System at its trade show booths, Defendant Izolations intention
and purpose is to compare the two products in front of dental professionals who are
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potential purchasers of, and comprise a target market for, these products, and to
persuade such potential purchasers to purchase the Izolation Dryfield Isolation
System in lieu of the Isolite Product.
40. On information and belief, Defendant Izolation has been and continues
to engage in a scheme of disseminating false advertising and making false and/or
misleading statements of fact regarding the Izolation Dryfield Izolation System in
comparison to the Plaintiff Isolite Systems Isolite Product, as well as false and/or
misleading statements of fact constituting disparagement of the Isolite Product (as
more fully described below), with the intent to induce prospective customers of
Plaintiff Isolite Systems to purchase the Izolation Dryfield Isolation System in lieu
of the Isolite Product.
FIRST COUNT
(Infringement of U.S. Patent No. 8,297,973)
41. Plaintiff Isolite Systems repeats and realleges the allegations contained
in paragraphs 1 through 40 above and hereby incorporates them herein by
reference.
42. This is a claim for patent infringement arising under 35 U.S.C. 271.
43. Plaintiff Isolite Systems is the owner by assignment of all right, title,
and interest in and to United States Patent No. 8,297,973 entitled Intraoral
Device (hereinafter referred to as the 973 patent), which was duly and legally
issued by the United States Patent and Trademark Office (USPTO) on October
30, 2012 naming J ames A. Hirsch and Thomas R. Hirsch as inventors. On
February 5, 2013, the USPTO issued a Certificate of Correction for the 973 patent.
The 973 patent is valid, enforceable, and currently in full force and effect. A true
and accurate copy of the 973 patent with the Certificate of Correction is attached
hereto as Exhibit A.
44. Defendant Izolation has committed infringement of the 973 patent (i)
in violation of 35 U.S.C. 271(a) by directly infringing (either literally or under the
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doctrine of equivalents), (ii) in violation of 35 U.S.C. 271(b) by actively inducing
infringement, and/or (iii) in violation of 35 U.S.C. 271(c), by engaging in acts of
contributory infringement, by directly and/or indirectly making, using, selling,
offering for sale within the United States, and/or importing into the United States,
the Izolation Dryfield Isolation System (and/or components thereof), which is
covered by one or more claims of the 973 patent and therefore embodies the
patented invention described in the 973 patent.
45. As a direct and proximate result of Defendant Izolations infringement
of the 973 patent, Defendant Izolation has derived and received gains, profits and
advantages in an amount not presently known to Plaintiff Isolite Systems.
46. As a further direct and proximate result of Defendant Izolation having
infringed and continuing to infringe the 973 patent, Plaintiff Isolite Systems has
suffered, and will continue to suffer, irreparable harm in one or more of the
following ways:
(a) Plaintiff Isolite Systems relationships with certain of its
customers and prospective customers will be permanently and
irrevocably damaged in that they will be induced to purchase
the infringing Izolation Dryfield Isolation System and
components thereof from Defendant Izolation and/or others and
may refrain from purchasing the Isolite Product;
(b)Plaintiff Isolite Systems will lose existing customers as well as
prospective customers to Defendant Izolation and thereby
permanently and irrevocably lose a substantial share of the
market for the Isolation Product and components thereof to
Defendant Izolation;
(c) Plaintiff Isolite Systems will be forced to lower the purchase
price of the Isolation Product and components thereof;
(d)Plaintiff Isolite Systems will lose a substantial and inestimable
amount of revenue and profits that will cause the market value
of Plaintiff Isolite Systems to permanently diminish; and/or
(e) Plaintiff Isolite Systems will lose the value of the 973 patent in
that ownership of the 973 patent gives Plaintiff Isolite Systems
the statutory and constitutionally protected right to exclude
others, especially competitors, from making, using, offering to
sell and/or selling embodiments of the invention described in
the 973 patents claims.
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47. Pursuant to 35 U.S.C. 284, Plaintiff Isolite Systems is entitled to
damages for Defendant Izolations infringing acts.
48. As a direct and proximate result of Defendant Izolations infringing
acts, Plaintiff Isolite Systems continues to suffer great and irreparable harm as
described above, for which Plaintiff Isolite Systems has no adequate remedy at law,
unless Defendant Izolation is enjoined by this Court.
SECOND COUNT
(Infringement of U.S. Patent No. 6,908,308)
49. Plaintiff Isolite Systems repeats and realleges the allegations contained
in paragraphs 1 through 40 above and hereby incorporates them herein by
reference.
50. This is a claim for patent infringement arising under 35 U.S.C. 271.
51. Plaintiff Isolite Systems is the owner by assignment of all right, title,
and interest in and to United States Patent No. 6,908,308 (the 308 patent)
entitled Intraoral Device and Method of Using the Same (hereinafter referred to
as the 308 patent), which was duly and legally issued by the USPTO on J une 21,
2005, naming J ames A. Hirsch and Thomas R. Hirsch as inventors. The 308
patent is valid, enforceable, and currently in full force and effect. A true and
accurate copy of the 308 patent is attached hereto as Exhibit B.
52. Defendant Izolation has committed infringement of the 308 patent (i)
in violation of 35 U.S.C. 271(a) by directly infringing (either literally or under the
doctrine of equivalents), (ii) in violation of 35 U.S.C. 271(b) by actively inducing
infringement, and/or (iii) in violation of 35 U.S.C. 271(c), by engaging in acts of
contributory infringement, by directly and/or indirectly making, using, selling,
offering for sale within the United States, and/or importing into the United States,
the Izolation Dryfield Isolation System, and/or components thereof, which is
covered by one or more claims of the 308 patent and therefore embodies the
patented invention described in the 308 patent.
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53. On information and belief, Defendant Izolation was on notice of the
308 patent and therefore has engaged in willful infringement of the 308 patent by
actual intent to infringe or objective recklessness.
54. As a direct and proximate result of Defendant Izolations infringement
of the 308 patent, Defendant Izolation has derived and received gains, profits and
advantages in an amount not presently known to Plaintiff Isolite Systems.
55. As a further direct and proximate result of Defendant Izolation having
infringed and continuing to infringe the 308 patent, Plaintiff Isolite Systems has
suffered, and will continue to suffer, irreparable harm in one or more of the
following ways:
(a) Plaintiff Isolite Systems relationships with certain of its
customers and prospective customers will be permanently and
irrevocably damaged in that they will be induced to purchase
the infringing Izolation Dryfield Isolation System and
components thereof from Defendant Izolation and/or others and
may refrain from purchasing the Isolite Product;
(b)Plaintiff Isolite Systems will lose existing customers as well as
prospective customers to Defendant Izolation and thereby
permanently and irrevocably lose a substantial share of the
market for the Isolation Product and components thereof to
Defendant Izolation;
(c) Plaintiff Isolite Systems will be forced to lower the purchase
price of the Isolation Product and components thereof;
(d)Plaintiff Isolite Systems will lose a substantial and inestimable
amount of revenue and profits that will cause the market value
of Plaintiff Isolite Systems to permanently diminish; and/or
(e) Plaintiff Isolite Systems will lose the value of the 308 patent in
that ownership of the 308 patent gives Plaintiff Isolite Systems
the statutory and constitutionally protected right to exclude
others, especially competitors, from making, using, offering to
sell and/or selling embodiments of the invention described in
the 308 patents claims.
56. As a direct and proximate result of Defendant Izolations infringing
acts, Plaintiff Isolite Systems continues to suffer great and irreparable harm as
described above, for which Plaintiff Isolite Systems has no adequate remedy at law,
unless Defendant Izolation is enjoined by this Court.
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57. Pursuant to 35 U.S.C. 284, Plaintiff Isolite Systems is entitled to
damages for Defendant Izolations infringing acts and for such damages to be
trebled for willful infringement.
58. Pursuant to 35 U.S.C. 285, Plaintiff Isolite Systems is entitled to a
determination that this is an exceptional case and to recover reasonable attorneys
fees for the necessity of bringing this claim.
THIRD COUNT
(Infringement of U.S. Patent No. D615,203)
59. Plaintiff Isolite Systems repeats and realleges the allegations contained
in paragraphs 1 through 40 above and hereby incorporates them herein by
reference.
60. This is a claim for patent infringement arising under 35 U.S.C. 271.
61. Plaintiff Isolite Systems is the owner by assignment of all right, title,
and interest in and to United States Patent No. D615,203 (the D203 patent),
which was duly and legally issued by the USPTO on May 4, 2010, for the
ornamental design of an intraoral device shown therein and naming J ames A.
Hirsch and Thomas R. Hirsch as inventors. The D203 patent is valid, enforceable
and currently in full force and effect. A true and accurate copy of the 203 patent is
attached hereto as Exhibit C.
62. Defendant Izolation has committed infringement of the D203 patent (i)
in violation of 35 U.S.C. 271(a) by directly infringing, and/or (ii) in violation of
35 U.S.C. 271(b) by actively inducing infringement, by directly and/or indirectly
making, using, selling, offering for sale within the United States, and/or importing
into the United States, the Izolation Dryfield Isolation System mouthpieces, which
embody the patented invention described in the D203 patent.
63. On information and belief, Defendant Izolation was on notice of the
D203 patent and therefore has engaged in willful infringement of the D203 patent
by actual intent to infringe or objective recklessness.
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64. As a direct and proximate result of Defendant Izolations infringement
of the D203 patent, Defendant Izolation has derived and received gains, profits and
advantages in an amount not presently known to Plaintiff Isolite Systems.
65. As a further direct and proximate result of Defendant Izolation having
infringed and continuing to infringe the D203 patent, Plaintiff Isolite Systems has
suffered, and will continue to suffer, irreparable harm in one or more of the
following ways:
(a) Plaintiff Isolite Systems relationships with certain of its
customers and prospective customers will be permanently and
irrevocably damaged in that they will be induced to purchase
the infringing Izolation Dryfield Isolation System mouthpieces
from Defendant Izolation and/or others and may refrain from
purchasing the Isolite Product;
(b)Plaintiff Isolite Systems will lose existing customers as well as
prospective customers to Defendant Izolation and thereby
permanently and irrevocably lose a substantial share of the
market for the Isolation Product and components thereof to
Defendant Izolation;
(c) Plaintiff Isolite Systems will be forced to lower the purchase
price of the Isolation Product and components thereof;
(d)Plaintiff Isolite Systems will lose a substantial and inestimable
amount of revenue and profits that will cause the market value
of Plaintiff Isolite Systems to permanently diminish; and/or
(e) Plaintiff Isolite Systems will lose the value of the D203 patent
in that ownership of the D203 patent gives Plaintiff Isolite
Systems the statutory and constitutionally protected right to
exclude others, especially competitors, from making, using,
offering to sell and/or selling embodiments of the invention
described in the D203 patent.
66. As a direct and proximate result of Defendant Izolations infringing
acts, Plaintiff Isolite Systems continues to suffer great and irreparable harm as
described above, for which Plaintiff Isolite Systems has no adequate remedy at law,
unless Defendant Izolation is enjoined by this Court.
67. Pursuant to 35 U.S.C. 284, Plaintiff Isolite Systems is entitled to
damages for Defendant Izolations infringing acts and for such damages to be
trebled for willful infringement.
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
68. Pursuant to 35 U.S.C. 289, Plaintiff Isolite Systems is entitled to
Defendant Izolations total profits from Izolations infringement of the D203
patent.
69. Pursuant to 35 U.S.C. 285, Plaintiff Isolite Systems is entitled to a
determination that this is an exceptional case and to recover reasonable attorneys
fees for the necessity of bringing this claim.
FOURTH COUNT
(Infringement of Federally Registered Trademarks [15 U.S.C. 1114])
70. Plaintiff Isolite Systems repeats and realleges the allegations contained
in paragraphs 1 through 40 above and hereby incorporates them herein by
reference.
71. Plaintiff Isolite Systems adopted the mark ISOLITE and has used it
in interstate commerce for the Isolite Product for over ten years.
72. On April 16, 2012, Plaintiff Isolite Systems filed an application for a
federal trademark registration in the USPTO for the mark ISOLITE, which was
registered on the Principal Register on May 7, 2013 covering the use of said mark
on the following goods:
Dental apparatus, namely, intra-oral light systems; Dental device
that expands the mouth to improve the field of view inside the
mouth, and extracts saliva from the work area inside the mouth;
Dental instruments for use in teeth cleanings, dental prophylaxis
and dental surgery; Dental instruments, namely, Dental light
systems, dental aspirators, bite blocks, saliva ejectors, saliva
suction devices, tissue retractors, gingival retractors, tongue
guards, and dental tongue and cheek retractors; Dental operating
lamps; Intra-oral dental light system; Medical instruments for use
in teeth cleaning and dental prophylaxis by dentists and dental
hygienists in the nature of dental aspirators, bite blocks, saliva
ejectors, saliva suction devices, tissue retractors, gingival
retractors, tongue guards, and dental tongue and cheek retractors.
The application noted that the mark ISOLITE had been used in commerce by
Plaintiff Isolite Systems since at least on or about May 1, 2003. This federal
trademark registration is presently valid. A copy of the printout from the USPTO
website evidencing this federal trademark registration for ISOLITE is attached
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
hereto as Exhibit D.
73. Continuously for over ten years, Plaintiff Isolite Systems has used the
mark ISOLITE to identify the Isolite Product and components thereof and to
distinguish it from dental device products made and sold by others by, among other
things, displaying the mark ISOLITE on the Isolite Product, on packaging for the
Isolite Product and on Plaintiff Isolite Systems website at
www.isolitesystems.com. In addition, Plaintiff Isolite Systems has prominently
displayed said mark on advertising and promotional materials, including but not
limited to, Internet advertising, product brochures, e-mail, letter heads and
periodicals distributed throughout the United States.
74. Plaintiff Isolite Systems adopted the mark ISODRY and used it in
interstate commerce for the model of Isolite Product that does not have the LED
light source since on or about March 1, 2010.
75. On August 17, 2009, Plaintiff Isolite Systems filed its application for a
federal trademark registration in the USPTO for the mark ISODRY, which was
registered on the Principal Register on April 12, 2011 covering the use of said mark
on the following goods:
Medical and dental apparatus, namely, suction devices for dental
use, dental aspirators, dental bite blocks, saliva ejectors, saliva
suction devices, tissue retractors, gingival retractors, tongue
guards, dental dams, and dental tongue and cheek retractors;
Dental device that expands the mouth to improve the field of view
inside the mouth, and extracts saliva from the work area inside the
mouth; Dental instruments for use in surgery and dental
procedures; Surgical apparatus and instruments for dental use.
This federal trademark registration is presently valid. A copy of the printout from
the USPTO website evidencing this federal trademark registration for ISOLITE
is attached hereto as Exhibit E.
76. Continuously since on or about March 1, 2010, Plaintiff Isolite
Systems has used the mark ISODRY to identify the model of the Isolite Product
without the LED light source and components thereof and to distinguish it from
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
dental device products made and sold by others by, among other things, displaying
the mark ISODRY on the Isolite Product, on packaging for the Isolite Product
and on Plaintiff Isolite Systems website at www.isolitesystems.com. In addition,
Plaintiff Isolite Systems has prominently displayed said mark on advertising and
promotional materials, including but not limited to, Internet advertising, product
brochures, e-mail, letter heads and periodicals distributed throughout the United
States.
77. Over the years, Plaintiff Isolite Systems has spent hundreds of
thousands of dollars promoting and advertising the federally registered marks
ISOLITE and ISODRY (the Isolite Marks) and, as a result, Plaintiff Isolite
Systems has successfully built a recognizable brand in its market of dental
professionals that has generated valuable goodwill.
78. Defendant Izolation has infringed the Isolite Marks in interstate
commerce by operating an online store on the Izolation website under the name
IZOLATION.COM, and selling, offering for sale and advertising the Izolation
Dryfield Isolation System and components thereof in direct competition with the
Isolite Product under the names and marks: IZOLATION, IZO, IZO-SOFT,
IZO-SOFT SMALL, IZO-RETRACT, IZO-BITE, IZO-CORE and
IZOFLEX (the Izolation Infringing Marks).
79. Defendant Izolations use of one or more of the Izolation Infringing
Marks is without permission or authority of Plaintiff Isolite Systems and said use
by Defendant Izolation is likely to cause confusion, to cause mistake, and/or to
deceive in violation of 15 U.S.C. 1114.
80. On information and belief, Defendant Izolations above-described acts
of trademark infringement have been committed with the intent to cause confusion,
to cause mistake and/or to deceive.
81. As a direct and proximate result of Defendant Izolations trademark
infringement, Defendant Izolation has damaged and will continue to damage
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
Plaintiff Isolite Systems goodwill and reputation, and has caused and is likely to
continue to cause lost sales and profits, as well as loss of exclusive ownership and
use of the Isolite Marks, resulting in public confusion and damage to Plaintiff
Isolite Systems reputation.
82. Defendant Izolations actions as described above have caused and will
continue to cause irreparable harm to Plaintiff Isolite Systems and to consumers
who are or are likely to be confused by Defendant Izolations use of the Izolation
Infringing Marks, unless Defendant Izolation is restrained and enjoined by this
Court, and Plaintiff Isolite Systems has no adequate remedy at law.
83. As a further direct and proximate result of Defendant Izolations
actions as described above, Plaintiff Isolite Systems has been damaged and will
continue to sustain damage, and is entitled to receive compensation arising from its
lost sales, lost profits, and efforts necessary to minimize and/or prevent customer
confusion, in an amount to be proven at the time of trial.
84. In addition, Plaintiff Isolite Systems is entitled to recover Defendant
Izolations profits in an amount to be proven at the time of trial.
85. Pursuant to 15 U.S.C. 1116(a), Plaintiff Isolite Systems is further
entitled to injunctive relief to enjoin Defendant Izolation from any further violation
of 15 U.S.C. 1114, and to all other and further forms of relief this Court deems
appropriate.
86. The damages sustained by Plaintiff Isolite Systems as a result of the
conduct alleged herein should be trebled in accordance with 15 U.S.C. 1117(a)
due to Defendant Izolations willful infringement.
87. Plaintiff Isolite Systems is entitled to a determination that this is an
exceptional case and to recover reasonable attorneys fees for the necessity of
bringing this claim.
FIFTH COUNT
(False Designation of Origin in Violation of
Section 43(a) of the Federal Lanham Act [15 U.S.C. 1125(a)])
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
88. Plaintiff Isolite Systems repeats and realleges the allegations contained
in paragraphs 1 through 40 and 70 through 87 above and hereby incorporates them
herein by reference.
89. Defendant Izolation has caused its Izolation Dryfield Isolation System
and/or components thereof to enter into interstate commerce with the designations
and representations IZOLATION, IZO, IZO-SOFT, IZO-SOFT SMALL,
IZO-RETRACT, IZO-BITE, IZO-CORE and/or IZOFLEX connected
therewith.
90. Defendant Izolations use of IZOLATION, IZO, IZO-SOFT,
IZO-SOFT SMALL, IZO-RETRACT, IZO-BITE, IZO-CORE and/or
IZOFLEX are false designations of origin which is likely to cause confusion, to
cause mistake and/or to deceive as to the affiliation, connection or association of
Defendant Izolation with Plaintiff Isolite Systems and as to the origin, sponsorship,
or approval of the Izolation Dryfield Isolation System and/or components thereof
by Plaintiff Isolite Systems.
91. Defendant Izolations acts as described above are in violation of 15
U.S.C. 1125(a) in that Defendant Izolation has used in connection with goods or
services a false designation of origin, a false or misleading description and
representation of fact which is likely to cause confusion, and to cause mistake,
and/or to deceive as to the affiliation, connection or association of Defendant
Izolation with Plaintiff Isolite Systems and as to the origin, sponsorship, and
approval of Defendant Izolations goods, services and commercial activities by
Plaintiff Isolite Systems.
92. On information and belief, Defendant Izolations above-described
violations of 15 U.S.C. 1125(a) have been committed with the intent to cause
confusion, to cause mistake and/or to deceive.
93. As a direct and proximate result of Defendant Izolations violation of
15 U.S.C. 1125(a), Defendant Izolation has damaged and will continue to damage
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
Plaintiff Isolite Systems business, goodwill and reputation, and has caused and is
likely to continue to cause lost sales and profits, as well as loss of exclusive
ownership and use of the Isolite Marks, resulting in public confusion and damage
to Plaintiff Isolite Systems reputation.
94. Defendant Izolations actions as described above have caused and will
continue to cause irreparable harm to Plaintiff Isolite Systems and to consumers
who are or are likely to be confused by Defendant Izolations violation of 15
U.S.C. 1125(a), unless Defendant Izolation is restrained and enjoined by this
Court, and Plaintiff Isolite Systems has no adequate remedy at law.
95. As a further direct and proximate result of Defendant Izolations
actions as described above, Plaintiff Isolite Systems has been damaged and will
continue to sustain damage, and is entitled to receive compensation arising from its
lost sales, lost profits, and efforts necessary to minimize and/or prevent customer
confusion, in an amount to be proven at the time of trial.
96. In addition, Plaintiff Isolite Systems is entitled to recover Defendants
profits in an amount to be proven at the time of trial.
97. Pursuant to 15 U.S.C. 1116(a), Plaintiff Isolite Systems is further
entitled to injunctive relief to enjoin Defendant Izolation from any further violation
of 15 U.S.C. 1125(a), and to all other and further forms of relief this Court
deems appropriate.
98. The damages sustained by Plaintiff Isolite Systems as a result of the
conduct alleged herein should be trebled in accordance with 15 U.S.C. 1117(a)
due to Defendant Izolations willful violation of 15 U.S.C. 1125(a).
99. Plaintiff Isolite Systems is entitled to a determination that this is an
exceptional case and to recover reasonable attorneys fees for the necessity of
bringing this claim.
SIXTH COUNT
(Trade Dress Infringement in Violation of
Section 43(a) of the Federal Lanham Act [15 U.S.C. 1125(a)])
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
100. Plaintiff Isolite Systems repeats and realleges the allegations contained
in paragraphs 1 through 40 and 70 through 99 above and hereby incorporates them
herein by reference.
101. Plaintiff Isolite Systems owns a valid and protectable interest in the
product design trade dress of the Isolite Product, including but not limited to its
fish-tail shape and/or translucent color (the Isolite Trade Dress).
102. Plaintiff Isolite Systems adopted the Isolite Trade Dress and has used
it in interstate commerce for the Isolite Product for over ten years.
103. As a result of Plaintiff Isolite Systems continuous, exclusive and
extensive promotion, advertising and sale of the Isolite Product incorporating the
Isolite Trade Dress in interstate commerce and the commercial success of the
Isolite Product, the Isolite Trade Dress has developed secondary meaning among
dental professionals as an identifier of the source of the Isolite Product.
104. Defendant Izolation is using the Isolite Trade Dress in connection with
the Izolation Dryfield Isolation System mouthpieces in that such mouthpieces
incorporate the fish-tail shape and translucent color of the Isolite Trade Dress
without authorization from Plaintiff Isolite Systems.
105. Defendant Izolation has caused Izolation Dryfield Isolation System
mouthpieces incorporating the Isolite Trade Dress to enter into interstate
commerce.
106. Defendant Izolations unauthorized use of the Isolite Trade Dress is
likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,
connection or association of Defendant Izolation with Plaintiff Isolite Systems and
as to the origin, sponsorship, or approval of the Izolation Dryfield Isolation System
and/or components thereof by Plaintiff Isolite Systems.
107. Defendant Izolations acts as described above are in violation of 15
U.S.C. 1125(a) in that Defendant Izolation has used in connection with goods or
services trade dress which is likely to cause confusion, and to cause mistake, and/or
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
to deceive as to the affiliation, connection or association of Defendant Izolation
with Plaintiff Isolite Systems and as to the origin, sponsorship, and approval of
Defendant Izolations goods, services and commercial activities by Plaintiff Isolite
Systems.
108. On information and belief, Defendant Izolations above-described
violations of 15 U.S.C. 1125(a) have been committed with the intent to cause
confusion, to cause mistake and/or to deceive.
109. As a direct and proximate result of Defendant Izolations violation of
15 U.S.C. 1125(a), Defendant Izolation has damaged and will continue to damage
Plaintiff Isolite Systems business, goodwill and reputation, and has caused and is
likely to continue to cause lost sales and profits, as well as loss of exclusive
ownership and use of the Isolite Trade Dress, resulting in public confusion and
damage to Plaintiff Isolite Systems reputation.
110. Defendant Izolations actions as described above have caused and will
continue to cause irreparable harm to Plaintiff Isolite Systems and to consumers
who are or are likely to be confused by Defendant Izolations violation of 15
U.S.C. 1125(a), unless Defendant Izolation is restrained and enjoined by this
Court, and Plaintiff Isolite Systems has no adequate remedy at law.
111. As a further direct and proximate result of Defendant Izolations
actions as described above, Plaintiff Isolite Systems has been damaged and will
continue to sustain damage, and is entitled to receive compensation arising from its
lost sales, lost profits, and efforts necessary to minimize and/or prevent customer
confusion, in an amount to be proven at the time of trial.
112. In addition, Plaintiff Isolite Systems is entitled to recover Defendants
profits in an amount to be proven at the time of trial.
113. Pursuant to 15 U.S.C. 1116(a), Plaintiff Isolite Systems is further
entitled to injunctive relief to enjoin Defendant Izolation from any further violation
of 15 U.S.C. 1125(a), and to all other and further forms of relief this Court
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
deems appropriate.
114. The damages sustained by Plaintiff Isolite Systems as a result of the
conduct alleged herein should be trebled in accordance with 15 U.S.C. 1117(a)
due to Defendant Izolations willful violation of 15 U.S.C. 1125(a).
115. Plaintiff Isolite Systems is entitled to a determination that this is an
exceptional case and to recover reasonable attorneys fees for the necessity of
bringing this claim.
SEVENTH COUNT
(False Patent Marking in Violation of 35 U.S.C. 292)
116. Plaintiff Isolite Systems repeats and realleges the allegations contained
in paragraphs 1 through 40 above and hereby incorporates them herein by
reference.
117. This is an action brought pursuant to 35 U.S.C. 292(b).
118. On information and belief, Defendant Izolation has sold and offered
for sale, and continues to sell and offer for sale, the Izolation Dryfield Isolation
System and/or components thereof with the words patent pending marked upon
and/or affixed to them, and/or uses such words in advertising when in fact, no
application for patent has been made, or if made, is not pending, for the purpose of
deceiving the public.
119. The above-described actions of Defendant Izolation constitutes a
violation of 35 U.S.C. 292(a).
120. The Izolation Dryfield Izolation System is sold and offered for sale by
Defendant Izolation in direct competition with the Isolite Product.
121. On information and belief, as a result of Defendant Izolations
violation of 35 U.S.C. 292(a), Plaintiff Isolite Systems has suffered a competitive
injury in that, among other things, members of the public who are existing or
prospective purchasers of the Isolite Product who are deceived into believing that
Defendant Izolation may obtain patent protection on the Izolation Dryfield
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
Isolation System and/or components thereof, have not purchased or may not
purchase the Isolite Product for fear that they would be infringing or may infringe
in the future the alleged patent that Defendant Izolation falsely represents that it
is seeking.
122. Pursuant to 35 U.S.C. 292(a), Plaintiff Isolite Systems is entitled to
recovery of damages adequate to compensate it for the injury.
123. As a direct and proximate result of Defendant Izolations violation of
35 U.S.C. 292(a), Isolite Systems continues to suffer great and irreparable harm
for which Plaintiff Isolite Systems has no adequate remedy at law and is therefore
entitled to injunctive relief enjoining Defendant Izolations violation of 35 U.S.C.
292(a).
124. Pursuant to 35 U.S.C. 285, Plaintiff Isolite Systems is entitled to a
determination that this is an exceptional case and to recover reasonable attorneys
fees for the necessity of bringing this claim.
EIGHTH COUNT
(False Advertising in Violation of
Section 43(a) of the Federal Lanham Act [15 U.S.C. 1125(a)])
125. Plaintiff Isolite Systems repeats and realleges the allegations contained
in paragraphs 1 through 40 above and hereby incorporates them herein by
reference.
126. On information and belief, Defendant Izolation has been engaging,
and continues to engage, in a scheme of disseminating false advertising and making
false and/or misleading statements of fact regarding the Izolation Dryfield Izolation
System in comparison to the Plaintiff Isolite Systems Isolite Product with the
intent to induce prospective customers of Plaintiff Isolite Systems to purchase the
Izolation Dryfield Isolation System in lieu of the Isolite Product.
127. One example of Defendant Izolations dissemination of false
advertising and making of false and/or misleading statements of fact is the false
statement made to one or more attendees at the 2013 CDA San Francisco Trade
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
Show that Izolation is about one-third of the price of Isolite.
128. According to the order form distributed by Defendant Izolation at its
2013 CDA San Francisco Trade Show booth, the iZolation System (comprised of
5 iZo-Bites, 1 iZo-Core, 1 Suction System) sells for $595.00.
129. The model of the Isolite Product that is in the same category as the
Izolation Dryfield Izolation System (which does not have intra-oral illumination) is
sold under the mark ISODRY, and it does not have the LED light source
(hereinafter referred to as the Isodry Product).
130. Plaintiff Isolite Systems Isodry Product sells for $795.00 and comes
with six vacuum pipes that allow the Isodry Product to be used for up to six dental
patients.
131. Defendant Izolations representation that it costs about one-third of
the price of Isolite is therefore false for the reasons that include, but are not
limited to:
a. that the gross purchase price of the iZolation System is approximately
75% of the gross purchase price of Plaintiff Isolite Systems Isodry
Product, not one-third of the price; and
b. that a dental professional would have to purchase more than one
iZolation System to supply the same number of dental patients as the
Isodry Product does, resulting in a higher cost for a prospective purchaser
to acquire and use the Izolation Dryfield Izolation System than Plaintiff
Isolite Systems Isodry Product to supply the same number of dental
patients.
132. On information and belief, additional examples of Defendant
Izolations dissemination of false advertising and making of false and/or
misleading statements of fact about the Izolation Dryfield Izolation System, as well
as false and/or misleading statements of fact constituting disparagement of the
Isolite Product, include, but are not limited to, the following:
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
a. false factual claims that the Izolation Dryfield Isolation System is
superior in quality over the Isolite Product;
b. false factual claims that Izolation is more comfortable and soft than
Isolite;
c. false factual claims that dentists have said that the Isolite Product is too
difficult to use;
d. false factual claims that dental patients have complained that the Isolite
Product is too hard and uncomfortable; and
e. false factual claims that the Izolation Dryfield Izolation System has a
patent pending, as marked on the mouthpiece component.
133. Defendant Izolations false and/or misleading statements of fact as
described above constitute false advertising through statements and representations
which are literally false and/or which convey a false impression or are otherwise
misleading.
134. Defendant Izolations dissemination of false advertising and making of
false and/or misleading statements of fact as described above have actually
deceived and/or have a tendency to deceive a substantial segment of dental
professionals who are prospective purchasers and are Izolations intended audience.
135. Defendant Izolations dissemination of false advertising and making
of false and/or misleading statements of fact as described above are material in that
they have influenced and/or are likely to influence the purchasing decision of
dental professionals.
136. Defendant Izolations dissemination of false advertising and making
of false and/or misleading statements of fact as described above have been made in
interstate commerce to dental professionals who are prospective purchasers who
have traveled from all over the country to the 2013 CDA Anaheim Trade Show and
the 2013 CDA San Francisco Trade Show, and on information and belief, at dental
conventions and trade shows held all over the country. Moreover, the false patent
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
pending statement on the Izolation Dryfield Izolation Systems mouthpiece
component is disseminated in interstate commerce through the distribution and sale
of the mouthpiece component in the stream of commerce and in photographs that
have appeared on the Izolation website.
137. Defendant Izolations dissemination of false advertising and making of
false and/or misleading statements of fact have been done willfully and
intentionally, with the knowledge of their falsity and the knowledge that they had
the tendency to deceive a substantial segment of dental professionals who are
prospective purchasers and are Izolations intended audience.
138. Plaintiff Isolite Systems and Defendant Izolation are direct
competitors, and Defendant Izolations dissemination of false advertising and
making of false and/or misleading statements of fact have caused, and/or are likely
to cause, Plaintiff Isolite Systems to suffer severe competitive disadvantage, and,
on information and belief, the loss of sales of prospective purchasers, and existing
customers of Plaintiff Isolite Systems, who were deceived by Defendant Izolations
conduct.
139. The above-described conduct of Defendant Izolation constitutes false
advertising and unfair competition in violation of 15 U.S.C. 1125(a)(1)(B) in that
it constitutes the misrepresentation of the nature, characteristics, qualities or
geographic origin of Defendant Izolation and/or Plaintiff Isolites products in
commercial advertising or promotion.
140. As a direct and proximate result of Defendant Izolations violation of
15 U.S.C. 1125(a)(1)(B), Defendant Izolation has damaged and will continue to
damage Plaintiff Isolite Systems business, goodwill and reputation, and has caused
and is likely to continue to cause Plaintiff Isolite Systems to incur lost sales and
profits, and to suffer severe economic harm.
141. Defendant Izolations actions as described above have caused and will
continue to cause irreparable harm to Plaintiff Isolite Systems and to consumers
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
who are or are likely to be misled by Defendant Izolations violation of 15 U.S.C.
1125(a)(1)(B), unless Defendant Izolation is restrained and enjoined by this Court,
and Plaintiff Isolite Systems has no adequate remedy at law.
142. As a result of Defendant Izolations conduct as described above,
Plaintiff Isolite Systems is entitled (a) to an order of injunctive relief (i) to enjoin
Defendant Izolation from any further violation of 15 U.S.C. 1125(a)(1)(B), and
(ii) to effectuate corrective advertising, and (b) to all other and further forms of
relief this Court deems appropriate.
143. As a result of Defendant Izolations conduct as described above,
Plaintiff Isolite Systems is entitled to recover monetary damages.
144. The damages sustained by Plaintiff Isolite Systems as a result of the
conduct alleged herein should be trebled in accordance with 15 U.S.C. 1117(a)
due to Defendant Izolations willful violation of 15 U.S.C. 1125(a)(1)(B).
145. Plaintiff Isolite Systems is entitled to a determination that this is an
exceptional case and to recover reasonable attorneys fees for the necessity of
bringing this claim.
NINTH COUNT
(False Advertising in Violation of
Cal. Bus. & Prof. Code 17500)
146. Plaintiff Isolite Systems repeats and realleges the allegations contained
in paragraphs 1 through 40 and paragraphs 125 through 145 above and hereby
incorporates them herein by reference.
147. Defendant Izolations conduct as described above constitutes a
violation of Cal. Bus. & Prof. Code 17500.
148. Pursuant to Cal. Bus. & Prof. Code 17500, Plaintiff Isolite Systems is
entitled to recover monetary damages including, but not limited to, statutory
penalties of $2,500 per violation.
149. Pursuant to Cal. Bus. & Prof. Code 17500, Plaintiff Isolite Systems is
entitled to an order of injunctive relief (i) to enjoin Defendant Izolation from any
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further violation of Cal. Bus. & Prof. Code 17500, and (ii) to effectuate corrective
advertising.
150. Plaintiff Isolite Systems is also entitled to an award of attorneys fees
as a private attorney general pursuant to Cal. Code. Civ. P. 1021.5.
TENTH COUNT
(Trade Libel)
151. Plaintiff Isolite Systems repeats and realleges the allegations contained
in paragraphs 1 through 40 and paragraphs 125 through 150 above and hereby
incorporates them herein by reference.
152. Defendant Izolations conduct as described above constitutes trade
libel of Plaintiff Isolite Systems in that Defendant Izolations false and/or
misleading statements have disparaged, and continue to disparage, the Isolite
Product and Plaintiff Isolite Systems in one or more of the following ways:
a. false factual claims that Izolation is about one-third of the price of
Isolite ( i.e. that the Isodry Product costs three times that of Izolation);
b. false factual claims that the Izolation Dryfield Isolation System is
superior in quality over the Isolite Product;
c. false factual claims that Izolation is more comfortable and soft than
Isolite;
d. false factual claims that dentists have said that the Isolite Product is too
difficult to use; and
e. false factual claims that dental patients have complained that the Isolite
Product is too hard and uncomfortable.
153. Defendant Izolations disparaging statements concerning Plaintiff
Isolite Systems and its products are false.
154. On information and belief, Defendant Izolations statements have
induced others not to purchase Plaintiff Isolite Systems products, and Plaintiff
Isolite Systems has lost existing customers and the opportunity to obtain new
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
customers as a result thereof.
155. As a result of Defendant Izolations disparaging statements, Plaintiff
Isolite Systems has suffered special damages.
156. On information and belief, Defendant Izolations disparaging
statements were made with actual malice and the specific intent to harm Plaintiff
Isolite Systems by causing direct pecuniary damage, fostering ill-will toward
Plaintiff Isolite Systems and the desire to injure it.
157. As a direct and proximate result of Defendant Izolations disparaging
statements, Defendant Izolation has damaged and will continue to damage Plaintiff
Isolite Systems business, goodwill and reputation, and has caused and is likely to
continue to cause Plaintiff Isolite Systems to incur lost sales and profits, and to
suffer severe economic harm.
158. Defendant Izolations actions as described above have caused and will
continue to cause irreparable harm to Plaintiff Isolite Systems, unless Defendant
Izolation is restrained and enjoined by this Court, and Plaintiff Isolite Systems has
no adequate remedy at law.
159. As a result of Defendant Izolations conduct as described above,
Plaintiff Isolite Systems is entitled (a) to an order of injunctive relief to enjoin
Defendant Izolation from making any further disparaging statements about Plaintiff
Isolite Systems and/or its products, and (b) to all other and further forms of relief
this Court deems appropriate.
160. As a result of Defendant Izolations conduct as described above,
Plaintiff Isolite Systems is entitled to recover monetary damages.
161. On information and belief, Defendant Izolation has willfully engaged
in, and is willfully engaging in, the acts complained of with oppression, fraud, and
malice, and in conscious disregard of the rights of Plaintiff. Plaintiff is therefore
entitled to punitive damages and to recover its costs of bringing this action,
including reasonable attorneys fees.
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
ELEVENTH COUNT
(Unfair Competition in Violation of Cal. Bus. & Prof. Code 17200 et seq.)
162. Plaintiff Isolite Systems repeats and realleges the allegations contained
in paragraphs 1 through 161 above and hereby incorporates them herein by
reference.
163. Defendant Izolations actions as described above constitute unlawful,
unfair and/or fraudulent business acts or practices and unfair competition in
violation of Cal. Bus. & Prof. Code 17200.
164. As a direct and proximate result of Defendant Izolations conduct,
Plaintiff Isolite Systems has suffered an injury in fact, including without limitation,
damages in an amount to be proven at trial, loss of money or property, and
diminution in the value of its trademarks, trade dress and goodwill associated
therewith, damage to its reputation, as well as diminution in its market value.
Accordingly, Plaintiff Isolite Systems has standing to assert this claim pursuant to
Cal. Bus. & Prof. Code 17204.
165. Defendant Izolations actions have caused, and will continue to cause
Plaintiff to suffer irreparable harm unless enjoined by this Court pursuant to Cal.
Bus. & Prof. Code 17203, and Plaintiff has no adequate remedy at law.
166. In addition, Plaintiff Isolite Systems is entitled to an order that
Defendant Izolation disgorge all profits wrongfully obtained as a result of
Defendant Izolations unfair competition, and order that Defendant Izolation pay
restitution to Plaintiff Isolite Systems in an amount to be proven at trial.
167. Plaintiff Isolite Systems is entitled to recover reasonable attorneys
fees for the necessity of bringing this claim.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Isolite Systems prays for the following relief:
1. An Order adjudging Defendant Izolation to have infringed the 973 patent
under 35 U.S.C. 271;
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
2. An Order adjudging Defendant Izolation to have willfully infringed the
308 patent under 35 U.S.C. 271;
3. An Order adjudging Defendant Izolation to have willfully infringed the
D203 patent under 35 U.S.C. 271;
4. Pursuant to 35 U.S.C. 283:
(a) a preliminary and permanent injunction enjoining Defendant Izolation
and its respective directors, officers, agents, servants, employees
representatives, successors and assigns, and all persons and entities in
active concert or participation with Defendant Izolation, from directly
infringing, inducing infringement, and/or engaging in contributory
infringement of, the 973 patent and the 308 patent, and from directly
infringing and/or inducing infringement of, the D203 patent;
(b) an Order directing Defendant Izolation to destroy all infringing Izolation
Dryfield Isolation Systems and all components thereof in the possession,
custody or control of Defendant Izolation and to file a declaration with
the Court within thirty (30) days of such order that Defendant Izolation
has complied with same;
5. Pursuant to 35 U.S.C. 284, damages adequate to compensate Plaintiff
Isolite Systems for Defendant Izolations infringement, but in no event less than a
reasonable royalty for the use made of the inventions contained in the 973 patent,
the 308 patent and the D203 patent by Defendant Izolation;
6. Pursuant to 35 U.S.C. 289, an Order that Defendant Izolation account
for all gains, profits, and advantages derived by Defendant Izolations infringement
of the D203 patent;
7. Pursuant to 35 U.S.C. 284, an Order for a trebling of damages and/or
exemplary damages because of Defendant Izolations willful patent infringement;
8. Pursuant to 35 U.S.C. 285, an Order adjudging this case to be an
exceptional case and awarding attorneys fees and costs to Plaintiff Isolite Systems;
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
9. For Defendant Izolations acts of trademark infringement and violation
of 15 U.S.C. 1125(a), a preliminary and permanent injunction enjoining
Defendant Izolation, and its directors, officers, employees, agents, servants,
representatives and attorneys, and all persons in active concert or participation with
them, from engaging in the following activities and from assisting or inducing,
directly or indirectly, others to engage in any of the following activities:
(a) using in any manner the Izolation Infringing Marks, and/or any other
trademarks or trade dresses that so resemble the Isolite Marks and/or any
other registered or unregistered trademarks or trade dress of Plaintiff
Isolite Systems as to be likely to cause confusion, mistake, or deception,
on or in connection with the manufacture, advertising, offering for sale,
or sale of any product or service that is not Plaintiff Isolite Systems
products or services;
(b)using the Izolation Infringing Marks and/or any other trademarks or trade
dress that is or are confusingly similar to the Isolite Marks, and
confusingly similar to any other registered or unregistered trademarks or
trade dress of Plaintiff Isolite Systems;
(c) committing or contributing to any acts calculated to cause consumers to
believe that any products or services not sold or offered for sale by
Plaintiff Isolite Systems are affiliated with, connected with, associated
with, originated with, sponsored by, approved by, guaranteed by, or
produced under the control and supervision of, Plaintiff Isolite Systems;
(d)distributing or using in any manner promotional literature, product labels
or product packaging that misrepresents the source, authorization, or
affiliation of Defendant Izolations products or services;
(e) infringing the Isolite Marks or any other registered or unregistered
trademarks or trade dress, including the Isolite Trade Dress, of Plaintiff
Isolite Systems;
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
(f) falsely designating the origin of any of Defendant Izolations goods or
services;
(g)unfairly competing with Plaintiff Isolite Systems in any manner
whatsoever;
(h)falsely advertising and/or making any false and/or misleading statements
about Defendant Izolations products;
(i) disparaging and/or making any false and/or misleading statements about
Plaintiff Isolite Systems products; and
(j) causing a likelihood of confusion or any injury to Plaintiff Isolite
Systems business reputation.
10. For Defendant Izolations acts of trademark infringement and violations
of 15 U.S.C. 1125(a), an Order:
(a) directing Defendant Izolation to destroy all Izolation Dryfield Isolation
Systems and components thereof, packaging, advertising and promotional
materials containing any of the Izolation Infringing Marks and/or
infringing the Isolite Trade Dress, as well as any plates, molds and/or
other means of making same, in the possession, custody or control of
Defendant Izolation;
(b)implementing corrective advertising to correct the false advertising and
false and/or misleading statements regarding Defendant Izolations
products and regarding Plaintiff Isolite Systems products; and
(c) directing Defendant Izolation to file a declaration with the Court within
thirty (30) days of such order that Defendant Izolation has complied with
same;
11. For Defendant Izolations acts of trademark infringement and violations
of 15 U.S.C. 1125(a):
(a) Compensatory damages, including lost profits and goodwill;
(b) Disgorgement of Defendant Izolations profits; and
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
(c) an Order declaring that Defendant Izolations trademark infringement
and/or violation of 15 U.S.C. 1125(a) be deemed to be willful, that this
is an exceptional case, and that Plaintiff Isolite Systems is entitled to
treble and/or enhanced damages and reasonable attorneys fees and costs;
12. For Defendant Izolations violation of 35 U.S.C. 292, a preliminary and
permanent injunction enjoining Defendant Izolation from selling or offering for
sale the Izolation Dryfield Isolation System and/or any components thereof with the
words patent pending marked upon and/or affixed to them and/or using such
words in advertising;
13. For Defendant Izolations violation of 35 U.S.C. 292(a), Plaintiff
Isolite Systems is entitled to recovery of (i) damages adequate to compensate it for
the injury pursuant to 35 U.S.C. 292(b), and (ii) Defendant Izolations profits;
14. For Defendant Izolations violation of Cal. Bus. & Prof. Code 17500:
(a) monetary damages including, but not limited to, statutory penalties of
$2,500 per violation;
(b) an order of injunctive relief (i) to enjoin Defendant Izolation from any
further violation of Cal. Bus. & Prof. Code 17500, and (ii) to effectuate
corrective advertising;
(c) an award of attorneys fees as a private attorney general pursuant to Cal.
Code. Civ. P. 1021.5;
15. For Defendant Izolations violation of Cal. Bus. & Prof. Code 17200, a
preliminary and permanent injunction enjoining Defendant Izolation, and its
directors, officers, employees, agents, servants, representatives and attorneys, and
all persons in active concert or participation with them, from engaging in the
following activities and from assisting or inducing, directly or indirectly, others to
engage in any of the following activities:
(a) using in any manner the Izolation Infringing Marks, and/or any other
trademarks or trade dresses that so resemble the Isolite Systems Marks
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
and/or any other registered or unregistered trademarks or trade dress of
Plaintiff Isolite Systems as to be likely to cause confusion, mistake, or
deception, on or in connection with the manufacture, advertising, offering
for sale, or sale of any product or service that is not Plaintiff Isolite
Systems products or services;
(b)using the Izolation Infringing Marks and/or any other trademarks or trade
dress that is or are confusingly similar to the Isolite Systems Marks, and
confusingly similar to any other registered or unregistered trademarks or
trade dress of Plaintiff Isolite Systems;
(c) committing or contributing to any acts calculated to cause consumers to
believe that any products or services not sold or offered for sale by
Plaintiff Isolite Systems are affiliated with, connected with, associated
with, originated with, sponsored by, approved by, guaranteed by, or
produced under the control and supervision of, Plaintiff Isolite Systems;
(d)distributing or using in any manner promotional literature, product labels
or product packaging that misrepresents the source, authorization, or
affiliation of Defendant Izolations products or services; and
(e) infringing the Isolite Systems Marks or any other registered or
unregistered trademarks or trade dress, including the Isolite Trade Dress,
of Plaintiff Isolite Systems;
(f) falsely designating the origin of any of Defendant Izolations goods or
services;
(g) unfairly competing with Plaintiff Isolite Systems in any manner
whatsoever;
(h)falsely advertising and/or making any false and/or misleading statements
about Defendant Izolations products;
(i) disparaging and/or making any false and/or misleading statements about
Plaintiff Isolite Systems products; and
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
(j) causing a likelihood of confusion or any injury to Plaintiff Isolite
Systems business reputation;
16. For Defendant Izolations violation of Cal. Bus. & Prof. Code 17200,
an Order:
(a) directing Defendant Izolation to destroy all Izolation Dryfield Isolation
Systems and components thereof, packaging, advertising and promotional
materials containing any of the Izolation Infringing Marks and/or
infringing the Isolite Trade Dress, as well as any plates, molds and/or
other means of making same, in the possession, custody or control of
Defendant Izolation;
(b)implementing corrective advertising to correct the false advertising and
false and/or misleading statements regarding Defendant Izolations
products and regarding Plaintiff Isolite Systems products; and
(c) directing Defendant Izolation to file a declaration with the Court within
thirty (30) days of such order that Defendant Izolation has complied with
same;
17. For Defendant Izolations violation of Cal. Bus. & Prof. Code 17200:
(a) Compensatory damages, including for lost profits and goodwill;
(b) Disgorgement of Defendant Izolations profits;
(c) Restitution in an amount to be proven at trial;
(d)Exemplary or punitive damages; and
(e) Reasonable attorneys fees and costs;
18. For Defendant Izolations acts of trade libel:
(a) Compensatory damages;
(b)Exemplary or punitive damages;
(c) an Order restraining and enjoining Defendant Izolation from making any
further disparaging statements about Plaintiff Isolite Systems and/or its
products; and
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COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT
(f) reasonable attorneys fees and costs;
19. An award of pre-judgment and post-judgment interest;
20. Costs of this action, including reasonable attorneys fees; and
21. Such other and further relief as this court deems just and proper.
DEMAND FOR JURY TRIAL
Plaintiff Isolite Systems respectfully requests a jury trial on all issues triable
to a jury.
Dated: September 12, 2013 Respectfully submitted,
PROCOPIO, CORY, HARGREAVES &
SAVITCH, LLP
By:
Paul E. Burns
Attorneys for Plaintiff Innerlite Inc. dba
Isolite Systems
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